[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13120 ELEVENTH CIRCUIT
JANUARY 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 98-14021-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY CLARK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 29, 2010)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Timothy Clark, a pro se federal prisoner, appeals the district courts denial of
his motion for specific performance requesting the government to file a
Fed.R.Crim.P. 35(b) motion for a reduction of his sentence. Clark alleged in his
motion that Special Agent Nicolas Kent and Assistant United States Attorney
James McAdams orally agreed to file a Rule 35(b) motion on his behalf after his
distant cousin Leroy Hayes provided substantial assistance in other criminal
matters.
Clark argues that he was entitled to have the government file a Rule 35(b)
motion based on the substantial assistance he provided. Clark contends that the
government, per the cooperation agreement, was obligated to consider his
post-sentence cooperation and acted in bad faith by not honoring the agreement.
Moreover, he contends that he was entitled to an evidentiary hearing to determine
whether the government violated its contractual obligations. Finally, Clark argues
that the government’s refusal to file a Rule 35(b) motion was based on an
unconstitutional motive because it violated due process.
We review de novo whether the district court may compel the government to
file an initial substantial-assistance motion or a supplemental one. United States v.
Forney, 9 F.3d 1492, 1498 (11th Cir. 1993) (addressing a motion under U.S.S.G.
§ 5K1.1). A district court’s decision not to hold an evidentiary hearing is reviewed
only for an abuse of discretion. United States v. Winfield, 960 F.2d 970, 972 (11th
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Cir.1992).
Rule 35(b) allows the government to move the district court to reduce a
defendant’s sentence after sentencing when the defendant provides substantial
assistance in investigating or prosecuting another person. See Fed.R.Crim.P.
35(b). The government has the power, but not the duty, to file a Rule 35(b) motion
when the defendant has provided substantial assistance. Wade v. United States,
504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992) (U.S.S.G.
§ 5K1.1 substantial assistance context).
The Supreme Court has held that federal district courts may review the
government’s refusal to file a substantial-assistance motion if the defendant first
makes a “substantial threshold showing” that the refusal was based upon an
unconstitutional motive, such as race or religion. Wade, 504 U.S. at 186-87, 112
S.Ct. at 1843-44. In the absence of this showing, the defendant has no right to
discovery or an evidentiary hearing on the issue. Id. at 186, 112 S.Ct. at 1844. In
Wade, the Court noted that a defendant would be entitled to relief if the
prosecutor’s refusal to move was not rationally related to any legitimate
government interest. Id. Applying the Supreme Court’s holding in Wade, we have
concluded that “courts are precluded from intruding into prosecutorial discretion,”
except where there is “an allegation and a substantial showing that the prosecution
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refused to file a substantial assistance motion because of a constitutionally
impermissible motivation, such as race or religion.” Forney, 9 F.3d at 1501-02.
In Forney, we noted that general contract principles do not control when the
government has not specifically agreed to file a § 5K1.1 motion, and, therefore,
there must be a substantial showing of an unconstitutional motivation in order to
warrant judicial review. Id. at 1500 n.3.
Accordingly, under the facts of this case, the district court cannot be said to
have erred by denying Clark’s motion for specific performance. Clark failed to
allege that the government failed to file a Rule 35(b) motion based on a recognized
unconstitutional motive. Likewise, Clark was not entitled to an evidentiary hearing
because he failed to allege that the government’s refusal to file a Rule 35(b) motion
was based on a constitutionally impermissible motive.
AFFIRMED.
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